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Wednesday, March 18, 2015

A Question of (Juvenile) Justice

HANK PHILLIPPI RYAN:It’s always good to have in-house counsel. I am
married to a defense attorney--you know that—and whenever I hit a legal question
in my books, I run to wherever Jonathan is and get the scoop. I need a guy in
custody for eight hours, with no warrant, I say. How can I do that?Jargon, procedure, sentencing, laws, process—all
available here in my living room! Good thing, because the rules are complicated, and unique, and
very specific.

(And you know Jonathan does a lot of defense work
with juveniles—he’s the model for a defense attorney character in the brilliant
Defending Jacob—you know that, too, right?)

So when Nancy Allen –a former prosecutor—wanted to
chat about juvenile justice, I figured she could be the Reds’ in house counsel
today! Legal questions in your book—especially from the prosecutor’s point of view?
Bring ‘em on. And juvenile justice—that’s such a critical topic.

Prosecuting a Juvenile in
A Killing at the Creek

By Nancy Allen

In A
Killing at the Creek, my new Ozarks Mystery, I knew my main character,
prosecutor Elsie Arnold, was ready for a murder case. So in my new book, Elsie
has been handed her first homicide, prosecuting Tanner Monroe, a
15-year-old boy, for murder in the first degree. He has been certified to stand
trial as an adult for cutting a woman's throat and dumping the body in Muddy
Creek in the Ozarks hill country.

Elsie has her first murder case. But it’s not
the case she wants. No one has successfully prosecuted a fifteen-year-old
juvenile of murder in McCown County, Mo.

Why did I choose to accuse a child of tender
years of such a horrific crime in my legal thriller? Why did I create a
character as dark as Tanner Monroe? Well, it's not because I hate young
people, honest to god. Really--I like teenagers! Crazy about them! I'm a
faculty member at Missouri State University; I have a teenage daughter; I'm
surrounded by teens. They're wonderful.

But when a person of tender years is involved
in, or accused of, a terrible crime, it raises fascinating questions. Did they
actually do it? How could they be so cold-blooded at such a young
age? Why would they do such a thing? Were they framed? Are they insane? And in
recent years, we hear so many reports of juveniles being certified to stand trial
as adults for homicides. I thought it was timely topic, and intriguing. These
are some of

the reasons I was eager to delve into the issue in A Killing at the Creek.

Plus--I have the background to write it. In my
career, I served as prosecutor in the Ozarks, and one of my
cases involved a similar scenario. I tried and convicted a
sixteen-year-old boy for the crime of first degree murder.

That case served as the inspiration for A Killing at the Creek. I must stress: my
book is a novel, it’s fiction; all characters are solely the product of my
imagination; the defendant, plotline and story arc are not a repetition of that
real life prosecution. But the case provided the seed for me to craft my story,
and gave me the professional experience to write a courtroom novel that rings
true.

But major changes have occurred in society—and
our legal system--since I tried that murder case. In past decades, every state
had an absolute age under which a juvenile was guaranteed protection by the
juvenile system--generally 14 or 15. Only those in their mid-teens had the
possibility of being certified to stand trial as an adult.

However, in the wake of schools shootings, like
the tragic incidents at Columbine and Jonesboro, Arkansas, many states moved to
dissolve the protection. In my home state of Missouri, protective limits all
but disappeared. At this time, anyone who is 17 is an adult under the Missouri
Criminal Code; and “at any age” a child who has committed a “serious crime” in
Missouri can be prosecuted as an adult.

That’s not all. When an individual is convicted
of 1st degree murder in Missouri, there are only 2 possible
penalties: death, or life imprisonment without possibility of parole. Our state
statutes make only the following provision for juveniles committed of Murder in
the 1st. If they’re under 16, they will not receive the death
penalty.

So in Missouri, our state law provides that people who are 16-18 can
be executed; and all of those who receive the penalty of life imprisonment,
will never have possibility of parole. They will live out their lives in
prison.

Our state law in Missouri is in direct violation
of recent decisions of the United State Supreme Court, declaring statutes that
mirror the Missouri law unconstitutional. But our state legislature won’t
budge. They say they’re taking a “wait & see” approach.

Increasingly, state legislatures and law
enforcement are taking a “get tough” stance on juvenile crime. In Missouri—as
in many other states—crimes committed by children are being handled in the
criminal courts, rather than juvenile jurisdiction. What do you think of this
trend? Do you think that children and teens who commit serious crimes should
face adult responsibility, or not?

Nancy Allen, an attorney, is a
member of the law faculty in the College of Business at Missouri State
University. After receiving her undergraduate degree in English from Missouri
State University, she entered law school, and received her Juris Doctor from
the University of Missouri School of Law.
Nancy practiced for fifteen years, serving as Assistant Missouri
Attorney General and as Assistant Prosecutor in her native Ozarks.

When Nancy began her term as
prosecutor in Greene County, Missouri, she was the sole female on the staff of
attorneys; moreover, she was the second woman in all of Southwest Missouri to
serve in that capacity. Upon taking her
position, she was assigned an unprecedented number of sex cases, including
offenses perpetrated against children, and became the leading sex crimes lawyer
in the office. In her years in
prosecution, she tried over thirty jury trials, including murder, rape, and
incest. During that time, she served on
the Rape Crisis Board and the Child Protection Team of the Child Advocacy
Council.

Nancy continues to demonstrate her
commitment to victims of sexual crime.
She serves on the Board of Directors of the Victim Center, an agency
which provides free counseling, crisis intervention, and advocacy services for
children and adults who are victims of violent and sexual crime in Southwest
Missouri.

Her first novel, a legal thriller
entitled The Code of the Hills, was
released by HarperCollins in 2014. The second book in the series, A Killingat the Creek, was released by HarperCollins in February of 2015.

34 comments:

Wow, what a difficult question . . . and there’s definitely no easy answer. The trend toward charging children as adults feels a bit like locking the barn door after the horse has run off. Facing adult responsibility [and punishment] for serious crimes would seem to depend on so many other factors, not just on the age of the child. What was the crime? Where are the parents? What kind of guidance has been given? When a child commits a serious crime, does the fault lie solely with the child or do the parents bear some of the responsibility? It may easy to bypass the juvenile jurisdiction, but the simple truth is that children don't think like adults or act like adults because they aren't adults. They are children.

Joan, you make an important point. Our justice system should not proceed against a person who can't understand the nature of the charges against him or assist in his defense. Yet state legislatures--and local prosecutors--insist on placing criminal responsibility upon children at younger & younger ages. It's a trend that needs to be reversed.

Nancy, I've seen stories in the press of children as young as 8 being taken from school in handcuffs. Here where I live, you can see variations from county to county in the way juveniles are treated for the same crime--race, gender, socioeconomic background all come into play.

FChurch--thanks for reminding us that Springtime is finally approaching! Man oh man, I'm ready for sunshine & warm breezes. I want to see the first forsythia in bloom.

You're right: our criminal justice system treats people in lower socioeconomic classes differently. Sometimes I worry that we have 2 justice systems: one for the poor & one for people with money. In Missouri, we've been horrified by reports of flagrant injustices in Ferguson.

Welcome Nancy! I loved THE CODE OF THE HILLS and I'm looking forward to A KILLING AT THE CREEK.

This is really thought provoking. We all know kids do incredibly stupid things (and it doesn't stop like magic at 18), which is why it's so fraught to parent a driving 17-year-old. They are also susceptible to persuasion, which I imagine is what the Dzhokhar Tsarnaev defense for the trial now underway in Boston will try to show... though he was 19.

Theoretically I'm not in favor of anyone getting locked up and throwing away the key or being killed. Certainly not automatically. But when it comes to some individual cases (Bundy, Manson, McVeigh) I'm less sure.

Nancy, this is an interesting question. It is my understanding that crime rates are down, yet legislatures in some states seem to be in a "get tough" mode. How to explain the contradiction? Why are elected officials willing to pass lock 'em up laws rather than invest in getting at the root cause of the violence? It feels cultural to me, not fact-based, which is worrisome. This is especially true with juveniles and even young adults who, as Hank points out, may have brains that are not fully developed in the area of judgment and impulse control.

Anyway, thank you for this thoughtful post. I am in the midst of edits for my second book which involves a murder trial in Downeast Maine. Like you, I am a lawyer, but I never did a lot of criminal work (these days I have a strictly transactional practice.) I am fortunate to have a bunch of trial lawyer colleagues and a friend who is a retired judge to consult on courtroom scenes and evidentiary details.

Whenever I hear of an adolescent or younger child being accused of murder, my first thought is that there must be some sort of underlying mental health issue that needs to be addressed. Personally, I don't believe that that can happen in the prison system.

Hhi everyone--yes, here have been a lot of studies done that show an adolescent brain simply isn't fully formed--so the decision-making process is very different.

There was just a different study I read about last week--which says 17 year old (i think that was the age, maybe 16) made perfectly great decisions when they were driving alone. But put other kids in the car--and the risk-taking started...

As a Catholic kid, growing up and learning the catechism, I remember the definition of when one can commit a sin, very clearly: when one has reached the "age of reason". In most cases, that is age seven, when human beings are most commonly able to tell right from wrong. As Hank said, our brains are not fully formed until adulthood, but we still know whether or not it's wrong to take another life, human or not. And as Joan pointed out, when do the parents' responsibilities in children's actions come into play? It is a squirmy problem, isn't it?

Hank, I did NOT know that Jonathan was the role model for the attorney in Defending Jacob, but I've been meaning, for some time, to thank you for the recommendation of that book. I listened to an audio version last year, and was blown away by the story. The attorney, by the way, was by far my favorite character.

This issue is so complicated for all the reasons Joan says. I also am not a fan of automatically locking people up or the death penalty (for anyone, actually), and yet consequences must be faced, no? How to balance those consequences with the act and take into consideration the mental/physical capacity of the perpetrator (as the parent of two teens, yeah, they definitely AREN'T adult-thinkers yet)--that is the tricky part.

(It was 60 here on Saturday. Today I scraped frost from the car and jacked the heat up. Not fair!)

This discussion rocks! So--we all agree that young people aren't as mature as seasoned adults. But at some point, friends, legal/criminal responsibility kicks in. The million $ question: when???Hank, in my book, I wanted to craft a juvenile defendant who was multi-dimensional. I didn't write from his POV, but we observe him in different settings & situations. Is he antisocial? Wily? Cold? Cunning? Yep. But does that necessarily mean he committed the murder??You'll have to read A Killing at the Creek to find out...

And--as Deb mentioned--what about the insanity defense?!?! YES--that's another issue the plot addresses in AKATC!In our system, if a person suffers from a mental disease or defect that makes him unable to appreciate the wrongfulness of his conduct or conform his actions to law, (and the defense can prove that), then he should be found NGI.But from the prosecutor's perspective--the fact that a person commits a crime is not in & of itself proof of insanity. There must be a diagnosis of MDorD. And it's still a Q for the jury to decide.

Absolutely fabulous discussion. Thank you, Nancy, and I also love teenagers though they were trying (to put it mildly) in my house.

In addition to juvenile brains not being fully developed because of age, throw in drug abuse (Is it ever far away?) and you have a 16 year old thinking like a 13 year old because his cognitive development began to stall when he or she began regularly using drugs.

IMO, and this may be slightly off topic, the current "get tough" stance is about two things: getting re-elected, and the emergence of privately run, for-profit prisons. There is little reason to rehabilitate or counsel if you need to keep those cells filled for financial gain.

Nancy, fascinating topic! A friend's husband is a criminal defense attorney who does a lot of work with juveniles and has defended teenagers accused of murder. These cases are so individual and complex that I don't see how you could make a blanket judgement. And to give a teenager, no matter how heinous the crime, no chance of rehabilitation seems unreasonable.

I suspect Ramona is right about the motivations for the more punitive sentencing--sort of like today's for-profit hospitals, where encouraging people to be healthy doesn't turn keep the hospitals in business...

IMHO: the get-tough-on-crime political stances are always about politicians getting re-elected. Law & order sells--and not just on TV.

And I agree: often, a child or teen's violent behavior can be traced to an abusive environment. But not always. In Defending Jacob, the author explained it as a hereditary fluke: like a "bad seed" theory.

I don't buy the bad seed idea. When abuse isn't the cause--and sometimes, it's not--I wonder about the problems that can occur when young people get more power than they are capble of handling, or are mature enough to handle. More like a "lord of the flies" theory.

I don't know that I can give a definitive answer to juveniles being charged as adults. As soon as I say that they shouldn't, then I would read about a case where I think they should. If anything is a case by case decision, it is this issue. Sometimes the mere brutality of the act is so unfathomable that I feel like the perpetrator should pay a hefty penalty. And, then I think about what Hank pointed out, that the adolescent brain isn't fully formed, and I ponder the mental health state that Deb Romano alludes to. I end up in a quagmire of doubts and uncertainties. Kids that are abused, physically and/or emotionally, are handicapped by their environment, but is that handicap and excuse or explanation for murdering someone? I've worked with teenagers and gotten to love so many that had more challenges in just living their daily lives than most adults can imagine. Do we consider the lousy job that some of their parents have done in raising them or giving them the tools to function properly in society?

But, then there have been the cases where a group of kids (oddly enough the cases I'm thinking of involve girls), ages 11/12 and into the teens, where the pair or group have murdered a peer. I have a low tolerance for that sort of murder, and I'm on board for trying the young people as adults. The case that has recently been in the news of the Shadow Man (name?) and the two 6th or 7th grade girls who stabbed their friend and left her for dead has me clamoring for adult treatment, and, yet, at the same time I wonder what is it that misfired in their brains to allow their obsession to turn to murder. As I said at the beginning of my comments, I'm unable to make this issue a black and white one.

Hank, what a cool connection that your husband was the model for the lawyer in Defending Jacob. The book has been on my TBR list forever, and I even own the paperback and have the book on Kindle. I just haven't read it yet. I now have a great incentive.

Nancy, thank you for such an interesting, thought-provoking post. My curiosity as to how you handled the issue of juvenile justice in your book is at high alert. I'll be adding A Killing at the Creek to my TBR list and my wish list.

Nancy, this is a really tough, but fascinating topic. My sister and I were discussing it on Monday, after two girls, ages 11 and 12, were certified to be tried as adults. This is just wrong - they are children. Their brains are far from fully developed. I do wonder about the home situation, as well. However, the juvenile justice system is just not designed to handle this type of crime. It's a quandary. We need a justice system between juvenile and adult to handle these offenders. The other problem is adult justice means adult prisons for children, where they are the most vulnerable targets. If you put them in solitary to protect them, you submit that developing brain to the equivalent of torture. This is a very serious problem that gets far too little attention or discussion.

One thing, I think, is clear: our highest court--the USSC--says that imprisoning a juvenile for life, without possibility of parole, is unconstitutional. It violates 8th Amendment prohibitions against cruel and unusual punishment. What's absurd is the fact that some state legislatures (Missouri!) are turning a deaf ear to the Court's ruling.

The laws struck down by the USSC were in another state--but the statutory provision declared unconstitutional mirrors MO law. Our state should take immediate action to amend our state law to comply w the USSC decision. But they refuse to. It's like they are saying "Come here & make me."

I agree with the many people who say it depends on the specifics of each case. In general, I am opposed to all mandatory sentencing laws. I believe one of the hallmarks of humanity is our ability to discern differences and apply discretion. We elect judges, I think, based on our perception of their discernment, their ability to impartially sort out facts and weigh competing concerns. I believe we should apply discretion, considering all the factors in each case, before deciding the appropriate punishment.

I know, there have been cases of unfair punishment because of judicial prejudice, etc., and sometimes that was the driver in the development of mandatory sentencing laws. But I think this is one of those cases where the cure is worse than the initial illness.

I'm reviewing the comments--such interesting & varied thoughts! But I can't help but note that even those of us in the JR camp are unable to agree on exactly WHAT should be the course of action when a person of tender years commits a violent crime. It's the same issue my main character, prosecutor Elsie Arnold, struggles with in my new legal thriller, A Killing at the Creek! I'm keeping it real, friends.

I have had former students come up to me in stores and restaurants, and it seems that the ones who were the toughest make the most effort to let me know how they have gone on to work, marry, start families . . . as if they want to show me that yes, the efforts were worth it. The turn-arounds are wonderful, even by some that it would have been tempting to give up on.I heard a talk on NPR by the author of a book called _Yes Your Teen-ager IS Crazy_, titled at the insistence of the parents in the support group he led. There is so much brain development, further complicated by hormonal changes, that to hold a teen accountable for the rest of his or her life seems excessive. Additionally, some come from backgrounds that make me wonder how I would have turned out in similar circumstances. Accountability and protection of society hang heavy on one side of the scale, but perhaps some compassion and real efforts to rehabilitate could be on the other side (and maybe get the guns out of their reach also).Thanks for real-life experts read to inform the literature and debates.

Hello everybody -yes, here have been a great deal of studies done that demonstrate a juvenile cerebrum basically isn't full fledged -so the choice making methodology is extremely different.There was only an alternate study I read about a week ago -which says 17 year old settled on flawlessly awesome choices when they were driving alone. Anyway put different children in the auto -and the danger taking began

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